REPUBLIC VS.
SANDIGANBAYAN, same in evidence against her since at the time of their seizure,
G.R. No. 104768, July 21, 2003
Facts:
Immediately upon her assumption to office following the successful
EDSA Revolution, then President Corazon C. Aquino issued
Executive Order No. 1 (“EO No. 1”) creating the Presidential
Commission on Good Government (“PCGG”). EO No. 1 primarily
tasked the PCGG to recover all ill-gotten wealth of former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates
and close associates. Accordingly, the PCGG, through its then
Chairman Jovito R. Salonga, created an AFP Anti-Graft Board
(“AFP Board”) tasked to investigate reports of unexplained wealth
and corrupt practices by AFP personnel, whether in the active
service or retired.
Based on its mandate, the AFP Board investigated various reports
of alleged unexplained wealth of respondent Major General
Josephus Q. Ramas (“Ramas”). Later, the AFP Board issued a
Resolution on its findings and recommendation on the reported
unexplained wealth of Ramas.
On 3 March 1986, the Constabulary raiding team served at
Dimaano’s residence a search warrant captioned “Illegal
Possession of Firearms and Ammunition.” The raiding team
seized the items detailed in the seizure receipt together with
other items not included in the search warrant. The raiding
team seized firearms, jewelry, and land titles.
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 (“RA No. 1379”) against Ramas. The
complaint was amended to include Elizabeth Dimaano, the alleged
mistress of Ramas, as co-defendant.
The Amended Complaint further alleged that Ramas “acquired
funds, assets and properties manifestly out of proportion to his
salary as an army officer and his other income from legitimately
acquired property by taking undue advantage of his public office
and/or using his power, authority and influence as such officer of
the Armed Forces of the Philippines and as a subordinate and
close associate of the deposed President Ferdinand Marcos.” The
Amended Complaint prayed for, among others, the forfeiture of
respondents’ properties, funds and equipment in favor of the State.
Trial ensured. However, the Sandiganbayan subsequently
dismissed the complaint because there was an illegal search and
seizure of the items confiscated, among others.
Hence, this appeal.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure “on March 3, 1986 or five
days after the successful EDSA revolution.” Petitioner argues that a
revolutionary government was operative at that time by virtue of
Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were “taking power in the name and by the will of
the Filipino people.” Petitioner asserts that the revolutionary
government effectively withheld the operation of the 1973
Constitution which guaranteed private respondents’ exclusionary
right.
Moreover, petitioner argues that the exclusionary right arising from
an illegal search applies only beginning 2 February 1987, the date
of ratification of the 1987 Constitution. Petitioner contends that all
rights under the Bill of Rights had already reverted to its embryonic
stage at the time of the search. Therefore, the government may
confiscate the monies and items taken from Dimaano and use the
private respondents did not enjoy any constitutional right.
Issue:
Whether or not the search of Dimaano’s home was legal
Held:
The search and seizure of Dimaano’s home were NOT legal.
The Bill of Rights under the 1973 Constitution was not
operative during the interregnum.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated 25
March 1986, the EDSA Revolution was “done in defiance of the
provisions of the 1973 Constitution.“ The resulting government was
indisputably a revolutionary government bound by no constitution or
legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed
under international law.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus, during
the interregnum, a person could not invoke any exclusionary right
under a Bill of Rights because there was neither a constitution nor a
Bill of Rights during the interregnum.
To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on Good
Government (“PCGG”) before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process and
search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly
a revolutionary government bound by no constitution. No one could
validly question the sequestration orders as violative of the Bill of
Rights because there was no Bill of Rights during the interregnum.
The protection accorded to individuals under the International
Covenant on Civil and Political Rights (ICCPR) and the
Universal Declaration of Human Rights (UDHR) remained in
effect during the interregnum.
Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the ICCPR and the UDHR, almost the
same rights found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith
compliance with the ICCPR to which the Philippines is a signatory.
Article 2(1) of the ICCPR requires each signatory State “to respect
and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present ICCPR.” Under
Article 17(1) of the ICCPR, the revolutionary government had the
duty to insure that “[n]o one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence.”
The UDHR, to which the Philippines is also a signatory, provides in
its Article 17(2) that “[n]o one shall be arbitrarily deprived of his
property.” Although the signatories to the UDHR did not intend it as
a legally binding document, being only a UDHR, the Court has
interpreted the UDHR as part of the generally accepted principles
of international law and binding on the State. Thus, the
revolutionary government was also obligated under international
law to observe the rights of individuals under the UDHR.
The revolutionary government did not repudiate the ICCPR or the
UDHR during the interregnum. Whether the revolutionary
government could have repudiated all its obligations under the
ICCPR or the UDHR is another matter and is not the issue here.
Suffice it to say that the Court considers the UDHR as part of
customary international law, and that Filipinos as human beings are
proper subjects of the rules of international law laid down in the
ICCPR. The fact is the revolutionary government did not repudiate
the ICCPR or the UDHR in the same way it repudiated the 1973
Constitution. As the de jure government, the revolutionary
government could not escape responsibility for the State’s good
faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25
March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution. The Provisional Constitution served as a self-
limitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights
existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority granted
them by the revolutionary government. The directives and orders
should not have also violated the ICCPR or the UDHR. In this case,
the revolutionary government presumptively sanctioned the warrant
since the revolutionary government did not repudiate it. The
warrant, issued by a judge upon proper application, specified the
items to be searched and seized. The warrant is thus valid with
respect to the items specifically described in the warrant.
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The search
warrant did not particularly describe these items and the raiding
team confiscated them on its own authority. The raiding team had
no legal basis to seize these items without showing that these items
could be the subject of warrantless search and seizure. Clearly, the
raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these
items are contraband per se, and they are not, they must be
returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner of
these items, merely that the search and seizure warrant could not
be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned
immediately to Dimaano.
NICARAGUA V USA
International Court of Justice Contentious Case: Case
Concerning the Military and Paramilitary Activities In and
Against Nicaragua (Nicaragua vs United States)
Year of Decision: 1986.
Overview: The case involved military and paramilitary activities
carried out by the United States against Nicaragua from 1981 to
1984. Nicaragua asked the Court to find that these activities
violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced
by a government installed by Frente Sandinista de Liberacion
Nacional (FSLN). Supporters of the former Somoza Government
and former members of the National Guard opposed the new
government. The US – initially supportive of the new government –
changed its attitude when, according to the United States, it found
that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981 the United States stopped its
aid to Nicaragua and in September 1981, according to Nicaragua,
the United States “decided to plan and undertake activities directed
against Nicaragua”.
The armed activities against the new Government was carried out
mainly by (1) Fuerza Democratica Nicaragüense (FDN), which
operated along the border with Honduras, and (2) Alianza
Revolucionaria Democratica (ARDE), which operated along the
border with Costa Rica. Initial US support to these groups fighting
against the Nicaraguan Government (called “contras”) was covert.
Later, the United States officially acknowledged its support (for
example: In 1983 budgetary legislation enacted by the United
States Congress made specific provision for funds to be used by
United States intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in
control of the contras, the United States devised their strategy and
directed their tactics, and that the contras were paid for and directly
controlled by the United States. Nicaragua also alleged that some
attacks against Nicaragua were carried out, directly, by the United
States military – with the aim to overthrow the Government of
Nicaragua. Attacks against Nicaragua included the mining of
Nicaraguan ports, and other attacks on ports, oil installations, and a
naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply
to the contras in the field, and to intimidate the population.
The United States did not appear before the ICJ at the merit
stages, after refusing to accept the ICJ’s jurisdiction to decide the
case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-
defence guaranteed in A. 51 of the UN Charter when it provided
“upon request proportionate and appropriate assistance…” to Costa
Rica, Honduras, and El Salvador in response to Nicaragua’s acts of
aggression against those countries (paras 126, 128).
Questions before the Court:
1. Did the United States violate its customary international
law obligation not to intervene in the affairs of another
State, when it trained, armed, equipped, and financed the
contra forces or when it encouraged, supported, and aided
the military and paramilitary activities against Nicaragua?
2. Did the United States violate its customary international
law obligation not to use force against another State, when
it directly attacked Nicaragua in 1983 and 1984 and when
its activities in point (1) above resulted in the use of force?
3. Can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as
collective self-defence?
4. Did the United States breach its customary international
law obligation not to violate the sovereignty of another
State, when it directed or authorized its aircrafts to fly over
the territory of Nicaragua and because of acts referred to
in (2) above?
5. Did the United States breach its customary international
law obligations not to violate the sovereignty of another
State, not to intervene in its affairs, not to use force
 against another State and not to interrupt peaceful
maritime commerce, when it laid mines in the internal
waters and in the territorial sea of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to
(1), (2), (4) and (5) above. On (3), the Court found that the United
States could not rely on collective self-defence to justify its use of
force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary
international law obligation not to use force against another
State when its activities with the contras resulted in the threat
or use of force (see paras 191-201).
The Court held that:
 The prohibition on the use of force is found both in Article
2(4) of the Charter of the United Nations (UN Charter) and
in customary international law.
 In a controversial finding the Court sub-classified the use
of force as:
(1) “most grave forms of the use of force” (i.e. those that
constitute an armed attack); and
(2) “other less grave forms” of the use of force (i.e.
organizing, instigating, assisting, or participating in acts of
civil strife and terrorist acts in another State – when the acts
referred to involve a threat or use of force, but not amounting
to an armed attack). (Para 191),
 The United States violated the customary international law
prohibition on the use of force when it laid mines in
Nicaraguan ports. It also violated this prohibition when it
attacked Nicaraguan ports, oil installations, and a naval
base (see below). The United States could only justify its
action on the basis of collective self-defence, if certain
criteria were met (these criteria are discussed below).
 The United States violated the customary international law
prohibition on the use of force when it assisted the contras
by “organizing or encouraging the organization of irregular
forces and armed bands… for incursion into the territory of
another state” and participated “in acts of civil strife…in
another State” and when these acts involved the threat or
use of force.
 The supply of funds to the contras did not violate the
prohibition on the use of force. On the contrary, Nicaragua
had previously argued before the Court that the United
States determined the timing of offensives against
Nicaragua when it provided funds to the contras. The
Court held that “…it does not follow that each provision of
funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned
by the United States.” The Court held further that the
arming and training of the contras and the supply of funds,
in itself, only amounted to acts of intervention in the
internal affairs of Nicaragua and did not violate the
prohibition on the use of force (para 227) (again, this
aspect will be discussed in detail below).
2. The Court held that the United States violated its customary
international law obligation not to use force against another
State when it directly attacked Nicaragua in 1983 and 1984 (see
paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s judgement was its
definition of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international
border; and
(2) “the sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of (sic)
armed force against another State of such gravity as to amount to
(inter alia) an actual armed attack conducted by regular forces, or
its (the State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article
3(g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression.
The Court further held that:
 Mere frontier incidents will not considered as armed
attacks, unless, because of its scale and effects, it would
have been classified as an armed attack had it been
carried out by regular forces.
 Assistance to rebels by providing weapons or logistical
support did not constitute an armed attack. Instead, it can
be regarded as a threat or use of force or an intervention
in the internal or external affairs of other States (see paras
195, 230).
 Under Article 51 of the UN Charter and under CIL – self-
defence is only available against a use of force that
amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s
Advisory Opinion on the Legal Consequences of of the Construction of
a Wall in the Occupied Palestinian Territory (hereinafter called the
Palestine wall case) the ICJ confirmed the definition of an “armed
attack” as proposed in the Nicaragua case. Draft Articles on State
Responsibility, prepared by the International Law Commission, provides
significant guidance as to when acts of non-State actors may be
attributed to States. These articles, together with recent State practice
relating attacks on terrorists operating from other countries may have
widened the scope of an armed attack, and consequently, the right of
self defence, envisaged by the ICJ. (for example, see discussion
surrounding the United States’ attacks in Afghanistan and Iraq) See
also a paper by Max Plank Institute on this topic (2017).
3. The Court held that the United States could not justify its military
and paramilitary activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based
requirements on the exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collectiveself-defence if an armed
attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately
reported to the Security Council.”
The Court held that:
 Customary international law allows for exceptions to the
prohibition on the use of force, which includes the right to
individual or collective self-defence (see here for a
difference between individual and collective self
defense). The United States, at an earlier stage of the
proceedings, had also agreed that the UN Charter
acknowledges the existence of this customary
international law right when it talks of the “inherent” right
under Article 51 of the Charter (para.193).
 When a State claims that it used force in collective self-
defence, the Court would examine the following:
(1) Whether the circumstances required for the exercise of self-
defence existed; and
(2) Whether the steps taken by the State, which was acting in self-
defence, corresponds to the requirements of international law.
 Under international law, several requirements must be met
for a State to exercise the right of individual or collective
self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack.
The assessment on whether an armed attack had taken place or
not, is done by the State who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based that
third State’s own assessment;
(3) In the case of collective self-defence, the victim State must
request for assistance. The Court held that “there is no rule
permitting the exercise of collective self-defence in the absence
of a request by the State which regards itself as the victim of an
armed attack”;
(4) A State that is attacked, does not, under customary
international law, have the same obligation as under Article 51 of
the UN Charter to report to the Security Council that an armed
attack happened – but the Court held that “the absence of a report
may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence” (see paras
200, 232 -236).
“…Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary
international law it is not a condition of the lawfulness of the use of
force in self-defence that a procedure so closely dependent on the
content of a treaty commitment and of the institutions established
by it, should have been followed. On the other hand, if self-defence
is advanced as a justification for measures which would otherwise
be in breach both of the principle of customary international law and
of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose
of enquiry into the customary law position, the absence of a report
may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (See paras
200, 232 -236)”.
 The Court, then, looked extensively into the conduct of
Nicaragua, El Salvador, Costa Rica, and Honduras to
determine if (1) an armed attack was undertaken by
Nicaragua against the three countries, which in turn would
(2) necessitate those countries to act in self-defence
against Nicaragua (paras 230 – 236). The Court noted
that (1) none of the countries who were allegedly subject
to an armed attack by Nicaragua declared themselves as
victims of an armed attack; (2) they did not request
assistance from the United States to exercise its right
of self-defence; (3) the United States did not claim that
when it used force, it was acting under Article 51 of the UN
Charter; and (4) the United States did not report that it was
acting in self-defense to the Security Council. The Court
concluded that, based on the above, the United States
cannot justify its use of force as collective self-defence.
 In any event, the Court held that the criteria relating to
necessity and proportionality, that is required to be
met when using force in self-defence – were also not
fulfilled (para 237).
4. The Court held that the United States breached its CIL
obligation not to intervene in the affairs of another State, when
it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary
activities against Nicaragua.
The Court held that:
 The principle of non-intervention requires that every State
has a right to conduct its affairs without outside
interference. In other words, the principle “…forbids States
or groups of States to intervene directly or indirectly in
internal or external affairs of other States.” This is a
corollary of the principle of sovereign equality of States.
The Court held that:
“A prohibited intervention must accordingly be one bearing on
matters in which each State is permitted, by the principle of State
sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation
of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones.
The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the
case of an intervention which uses force, either in the direct form of
military action, or in the indirect form of support for subversive or
terrorist armed activities within another State (para 205).”
 Nicaragua stated that the activities of the United States
were aimed to overthrow the government of Nicaragua, to
substantially damage the economy and to weaken the
political system with the aim to coerce the Government of
Nicaragua to accept various political demands of the
United States. The Court concluded that:
“…first, that the United States intended, by its support of the
contras, to coerce the Government of Nicaragua in respect of
matters in which each State is permitted, by the principle of State
sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to
overthrow the present Government of Nicaragua… The Court
considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that
State whose purpose is to overthrow the government of that State,
that amounts to an intervention by the one State in the internal
affairs of the other, whether or not the political objective of the State
giving such support and assistance is equally far reaching.”
 The financial support, training, supply of weapons,
intelligence and logistic support given by the United States
to the contras violated the principle of non-interference.
“…(N)o such general right of intervention, in support of an
opposition within another State, exists in contemporary
international law”, even if such a request for assistance is
made by an opposition group of that State (see para 246
for more).
 However, in a controversial finding, the Court held that the
United States did not devise the strategy, direct the tactics
of the contras or exercise control on them in manner so as
to make their acts committed in violation of international
law imputable to the United States (see in this
respect “Determining US responsibility for contra
operations under international law” 81 AMJIL 86). The
Court concluded that “a number of military and
paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at
least in close collaboration with them, and on the basis of
the intelligence and logistic support which the United
States was able to offer, particularly the supply aircraft
provided to the contras by the United States” but not all
contra operations reflected strategy and tactics wholly
devised by the United States.
“…the various forms of assistance provided to the contras by the
United States have been crucial to the pursuit of their activities, but
is insufficient to demonstrate their complete dependence on United
States aid. On the other hand, it indicates that in the initial years of
United States assistance the contra force was so dependent.
However, whether the United States Government at any stage
devised the strategy and directed the tactics of the contras depends
on the extent to which the United States made use of the potential
for control inherent in that dependence. The Court already indicated
that it has insufficient evidence to reach a finding on this point. It is
a fortiori unable to determine that the contra force may be equated
for legal purposes with the forces of the United States…The Court
has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the financing,
organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of
the whole of its operation, is still insufficient in itself, on the basis of
the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in
the course of their military or paramilitary operations in Nicaragua.
All the forms of United States participation mentioned above, and
even the general control by the respondent State over a force with
a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced
the perpetration of the acts contrary to human rights and
humanitarian law alleged by the applicant State. Such acts could
well be committed by members of the contras without the control of
the United States. For this conduct to give rise to legal
responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or
paramilitary.”
 Interesting, however, the Court also held that providing
“…humanitarian aid to persons or forces in another
country, whatever their political affiliations or objectives,
cannot be regarded as unlawful intervention, or as in any
other way contrary to international law” (para 242).
 In the event one State intervenes in the affairs of another
State, the victim State has a right to intervene in a manner
that is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to
collective self-defence, a use of force of a lesser degree of gravity
cannot as the Court has already observed (paragraph 211 above)
produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused,
even assuming them to have been established and imputable to
that State, could only have justified proportionate counter-measures
on the part of the State which had been the victim of these acts,
namely El Salvador, Honduras or Costa Rica. They could not
justify counter-measures taken by a third State, the United States,
and particularly could not justify intervention involving the use of
force.”
5. The United States violated its customary international law
obligation not to violate the sovereignty of another State, when
it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of
Nicaragua and its territorial sea.
 The Court examined evidence and found that in early
1984 mines were laid in or close to ports of the territorial
sea or internal waters of Nicaragua “by persons in the pay
or acting ion the instructions” of the United States and
acting under its supervision with its logistical support. The
United States did not issue any warning on the location or
existence of mines and this resulted in injuries and
increases in maritime insurance rates.
 The Court found that the United States also carried out
high-altitude reconnaissance flights over Nicaraguan
territory and certain low-altitude flights, complained of as
causing sonic booms. It held that a State’s sovereignty
extends to its internal waters, its territorial sea, and the
airspace above its territory. The United States violated
customary international law when it laid mines in the
territorial sea and internal waters of Nicaragua and when it
carried out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under the
control of the United States..
Overview:
This case was about military and paramilitary activities conducted
by, or with the assistance of, the United States against Nicaragua
from 1981 to 1984.
Due to a United States’ multilateral treaty reservation, (the
Vandenberg reservation), the Court could not rely on the United
Nations Charter and was compelled to base its findings in relation
to the use of force customary and general principles of international
law. As a result, the Nicaragua case developed a significant
jurisprudence on customary international law relating to (1) the use
of force and non-intervention, (2) elements necessary to form
customary international law, and (3) the relationship between
customary and treaty law.
Controversial aspects of the decision included (1) the Court’s
methodology used to determine that the principle of non-
intervention had attained customary law status, (2) the Court’s
reliance on resolutions of the General Assembly as a source of
opinio juris and (3) the Court’s reliance on multilateral treaties to
determine customary international law despite the
Vandenberg reservation.
Questions before the Court:
In Nicaragua vs United States, the Court discussed, amongst
others:
(1) Was the Court competent to give its determination based on
customary international law when there was a multilateral treaty
reservation?
(2) What is the relationship between treaty and customary
international law?
(3) What are the elements necessary to form customary
international law?
(4) What is the customary international law status of the principle of
non-intervention?
Relevant findings of the Court:
(1) The Court held that multilateral treaty reservations
cannot preclude the Court from relying on customary
international law, because customary law exists independently
of treaty law. (paras 172 – 178)
The Court held that the issues raised by Nicaragua – relating the
use of force and self defense – were regulated both by customary
law and treaty law, in particular the Charter of the United Nations.
Yet, the United States had entered into a multilateral
treaty reservation, which did not, for example, allow the Court to
rely on the Charter of the United Nations. The Court sought to rely,
instead, exclusively on customary law relating to the use of force. In
doing so, it held that multilateral treaty reservations cannot preclude
the Court from relying on customary international law because,
even if treaty provisions and customary law deal with the same
subject matter, customary law exists independently of treaty law.
(2) Relationship between treaty and customary international
law
The Court examined the relationship in two contexts to
demonstrate that customary and treaty law co-exist:
(a) where the customary law principles were identical to treaty
provisions; and
(b) where there were different rights or obligations under
customary and treaty law in respect of the same subject matter.
(a) Situations where the customary law principles were identical to
treaty provisions.
1. In situations where customary law principles were identical to
treaty provisions, the Court held that even if principles of customary
international law were subsequently codified into treaties, they
continue to exist side by side. For parties to treaties, both
customary and treaty law apply. If, for some reason, the treaty
ceases to apply between treaty parties, the identical customary law
provision continues to apply between them (para 178).
2. The argument that customary international law exists alongside
treaty law was brought by Norway and Denmark in the North Sea
Continental Shelf Cases. In these cases, the two countries having
failed to attribute an obligation under Article 6 of the Geneva
Conventions of 1958 to Germany, sought to bind Germany via
customary international law. The Court held that Article 6 did
not reflect customary law at the time of the codification, and had
not attained that status at the time of the determination. In
the Nicaragua case, the Court relied on the North Sea Continental
Shelf Cases to support its finding that principles of customary
international law can exist side by side with identical treaty law
provisions and that treaties do not supervene in a manner where
the customary law ceases to exist (para 177).
3. The Court also relied on Article 51 of the UN Charter to show
that a treaty itself can recognise the existence of customary
international law with respect to the same subject matter. For
example, the Court said that the term “inherent” in Article 51
recognised that customary law rights of self-defense existed
alongside treaty provisions.
4. Rules containing the same content could also be treated
differently in customary international law and in treaty law. For
example, treaty law may contain institutions or mechanisms to
ensure the effective implementation of its provisions, including
provisions that reflect existing customary law. For example, a State
that exercises the right of self-defence under Article 51, according
to the UN Charter, has an obligation to report the use of force
immediately to the Security Council. The Court held that this was a
treaty requirement and one that did not exist under customary law.
Interestingly, while the failure to report did not result in a breach of
customary international law, the Court indicated that the United
State’s failure to observe this requirement contradicted her claim to
be acting in self defense (see paras 200, 235).
(b) Situations where customary and treaty law rights and
obligations differed in respect of the same subject matter.
1. The Court discussed situations where customary international
law and treaty law provisions were not identical. For example, the
Court stated that concepts such as necessity and proportionality, or
the definition of what constitutes an armed attack, are not found
under Article 51, or the UN Charter, but in customary law. The
Court concluded that (1) this proves that customary international
law continues to exist alongside treaty law and that (2) areas
governed by the two sources of law do not (always) overlap and the
rules do not (always) have the same content. The Court held:
“…the Charter, having itself recognized the existence of this right
(inherent customary law right of self-defence under A. 51 of the UN
Charter), does not go on to regulate directly all aspects of its
content. For example, it does not contain any specific rule whereby
self-defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it, a rule well
established in customary international law. Moreover, a definition of
the “armed attack” which, if found to exist, authorises the exercise
of the “inherent right” of self-defence, is not provided in the Charter,
and is not part of treaty law. It cannot therefore be held that Article
51 is a provision which “subsumes and supervenes” customary
international law.”
2. In case of a divergence between treaty law and customary
international law, for the parties to a treaty, amongst themselves,
the treaty provisions apply as lex specialis. (see paras 180 and
181).
3. The Court explained the relationship between the Charter of the
United Nations and customary international law on the use of force
and self defense in the following manner:
“However, so far from having constituted a marked departure from
a customary international law which still exists unmodified, the
Charter gave expression in this field to principles already present in
customary international law, and that law has in the subsequent
four decades developed under the influence of the Charter, to such
an extent that a number of rules contained in the Charter have
acquired a status independent of it. The essential consideration is
that both the Charter and the customary international law flow from
a common fundamental principle outlawing the use of force in
international relations. The differences which may exist between
the specific content of each are not, in the Court’s view, such as to
cause a judgment confined to the field of customary international
law to be ineffective or inappropriate (to the parties of the Charter
who are bound by the Charter)… (text in brackets added)(para
181).”
4. The Court concluded that principles such as those of the non-use
of force, non-intervention, respect for the independence and
territorial integrity of States, right of collective self defense and the
freedom of navigation, continue to be binding as part of customary
international law, “despite the operation of provisions of
conventional law in which they have been incorporated.” (paras
191-193).
Analysis: Development of a parallel customary international
law?
In addition to the comments made above in italics, another
interesting aspect of the judgment is that it sought to
separate customary international law obligation from the identical
treaty obligation because of the jurisdictional bar to consider
multilateral treaties. In its consideration of customary international
law it developed certain principles independently of the treaty.
For example, Article 2(4) of the UN Charter prohibits the threat or
use of force against another State. The Court held that the same
prohibition on the use of force could be found under customary
international law and as a jus cogens norm. The Court then went on
to categorize the use of force under customary law as either a
“grave use of force” (i.e. use of force amounting to an armed attack)
or a “less grave use of force” (i.e. use of force that falls short of an
armed attack – for example, the threat to use force). The Court,
then, restricted the right of self-defense to a situation where there
had been a grave use of force (or an armed attack, as defined by
the Court).
If one were to hold that the relevant Charter principles were clear,
precise and unambiguous, one could say this divorced
interpretation could result in customary law developing in a manner
that is not in line with the Charter and thereby creating separate
rights/ regimes of law that govern the same subject matter. Then
the two regimes may become irreconcilable.
However, the fact remains that the Charter does leave room for
interpretation – for example, on the definition of an armed attack or
on the use of force. In cases of ambiguity, Article 31 of the Vienna
Convention on the Law of Treaties directs us to look at, inter alia,
subsequent practice and any relevant rules of international law that
maybe applicable. In other words, a treaty can be interpreted with
the assistance of customary and general principles of international
law.
In this case, the development of customary law would also mean a
potential development of ambiguous treaty law – and a
reconciliation of treaty and customary law provisions.
(3) The Court held that opinio juris and State practice remain
necessary elements to determine the existence of customary
international law
1. In the Nicaragua case, as the North Sea Continental Shelf Case,
considered both the subjective element (opinio juris) and the
objective element (State practice) as essential pre-requisites to the
formation and elucidation of a customary norm (para 207).
2. On State practice, the jurisprudence of the Nicaragua
case contained several important clarifications in respect of
inconsistent State practice (para 186). The Court held that:
(a) For a customary rule to come into force, it is not necessary to
have complete consistency in State practice in respect of the rule.
(b) Inconsistent State practice does not affect the formation or
existence of a customary principle so long as the inconsistency is
justified as a breach of the rule.
(c) This attempt at justifying a violation would only make the rule’s
customary law nature stronger.
2. On opinio juris, the Nicaragua case jurisprudence elaborated
on how to deduct opinio juris from acts of State. The Court held that
the following reflected opinio juris:
(a) the attitude of States towards certain General Assembly
resolutions.
“The effect of consent to the text of such resolutions cannot be
understood as merely that of a “reiteration or elucidation” of the
treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselves…It would
therefore seem apparent that the attitude referred to expresses an
opinio juris respecting such rule (or set of rules), to be thenceforth
treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the
Charter”
(b) Statements by State representatives.
(c) Obligations undertaken by States in international forums (the
Court provided the example of the Conference on Security and Co-
operation in Europe, Helsinki)
(d) The International Law Commission’s findings that a concept
amounts to a customary law principle.
(e) Multilateral conventions.
(4) The principle of non-intervention is customary international law.
1. The Court began its analysis with two questions:
“Notwithstanding the multiplicity of declarations by States accepting
the principle of non-intervention, there remain two questions: first,
what is the exact content of the principle… and secondly, is the
practice sufficiently in conformity with it for this to be a rule of
customary international law?” The first question was discussed in a
previous post and will not be discussed here.
3. On State practice, the Court noted that even if “examples of
trespass against this principle (of non-intervention) are not
infrequent” (para 202), this did not affect the customary law nature
of the prohibition on non-intervention. The Court held:
“The significance for the Court of cases of State conduct prima
facie inconsistent with the principle of non-intervention lies in the
nature of the ground offered as justification. Reliance by a State on
a novel right or an unprecedented exception to the principle
might, if shared in principle by other States, tend towards a
modification of customary international law. In fact however the
Court finds that States have not justified their conduct by reference
to a new right of intervention or a new exception to the principle of
its prohibition. The United States authorities have on some
occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the
domestic policies of that country, its ideology, the level of its
armaments, or the direction of its foreign policy. But these were
statements of international policy, and not an assertion of rules of
existing international law.”
4. On opinio juris, Court went on to hold, as before, that for a new
customary rule to be formed, Sate practice must be accompanied
by the opinio juris. The Court held:
“There have been in recent years a number of instances of foreign
intervention for the benefit of forces opposed to the government of
another State… It (the Court) has to consider whether there might
be indications of a practice illustrative of belief in a kind of general
right for States to intervene, directly or indirectly, with or without
armed force, in support of an internal opposition in another State,
whose cause appeared particularly worthy by reason of the political
and moral values with which it was identified. For such a general
right to come into existence would involve a fundamental
modification of the customary law principle of non-
intervention.” (paras 206, 207).
5. The Court also noted that the United States has not sought to
justify its intervention in Nicaragua on legal grounds, but had only
justified it at a political level. The United States had not asserted
for itself legal right of intervention in these circumstances. The
Court, without further analysis into State practice, almost
immediately proceeded to find that “…no such general right of
intervention, in support of an opposition within another State, exists
in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention
will also, if they directly or indirectly involve the use of force,
constitute a breach of the principle of non-use of force in
international relations (para 209).”
6. The Court held that the prohibition on the use of force contained
in Article 2(4) of the UN Charter has attained the status of a jus
cogens norm. The Court found this to be “A further confirmation of
the validity as customary international law of the principle of the
prohibition of the use of force expressed in Article 2, paragraph 4,
of the Charter of the United Nations…” (para 190).
PORTUGAL VS INDIA
Right of Passage over Indian Territory, Portugal v India
Facts:
Portugal held several small enclaves of territory within India; one on
the coast but the others inland. Portugal claimed they had a Right
of passage to its inland territories over Indian land which they
alleged India had interfered with.
Issues:
 Whether Portugal's claim of the right of passage through
Indian territory was too vague and contradictory to enable
the Court to pass judgment upon it under Article 38 (1) of
the Statute of the International Court of Justice.
 Whether the right of passage of military personnel and
arms should have the same right of passage over Indiana
territory as that of private persons and goods.
Reasons:
India argued before the Court that practice between only two states
was not sufficient to form a local custom. The Court rejected this
reasoning, finding no reason why a century and a quarter of
practice based on mutual rights and obligations was insufficient for
local custom to arise. This local practice, thus, prevailed over any
general rules.
Ratio:
Local customary law can exist as long as the elements in the North
Sea Continental Shelf case are made out.
(Portugal v. India) 1957 I.C.J. Rep. 125, 1960 I.C.J. Rep. 6. The
Portuguese district of Daman, in India, comprised Daman itself (on
the coast) and two inland enclaves of Dadra and Nagar-Aveli. In
July and August 1954, Portuguese authority in the two inland
enclaves was overthrown; India imposed restrictions upon
Portuguese passage to those enclaves, the lawfulness of which
Portugal disputed. India having already accepted the compulsory
jurisdiction of the I.C.J. by a declaration under art. 36(2) of the
Court's Statute, Portugal made such a declaration on 19 December
1955, and on 22 December 1955 filed an application submitting the
dispute to the Court. India raised six preliminary objections to the
exercise of jurisdiction by the Court, which, on 26 November 1957,
in rejecting four of India's objections and joining two to the merits,
held that (a) (14 to 3) Portugal's reservation to its declaration
permitting it at any time to exclude categories of disputes from the
jurisdiction of the Court was not inconsistent with the Court's
Statute; (b) (14 to 3) the filing by Portugal of an application three
days after filing its declaration under art. 36(2) of the Statute was
not inconsistent with the Statute; (c) (15 to 2) nor did it deprive India
of any right of reciprocity under art. 36(2) so as to constitute an
abuse of the Optional Clause; and (d) (16 to1) in the circumstances
of the case, diplomatic negotiations had sufficiently disclosed the
legal issue submitted to the Court.
In its judgment on the merits, on 12 April 1960, the Court held that
(a) (13 to 2) as in the proceedings both parties had invoked
arguments of international law, India's preliminary objection that its
reservation in its optional clause declaration excluded disputes with
regard to questions which by international law fell exclusively within
the jurisdiction of India could not be upheld; (b) (11 to 4) as both the
dispute and the situation of the enclaves which had given rise to
Portugal's claim arose after 5February 1930, the dispute was not
excluded from the Court's jurisdiction by India's acceptance of its
jurisdiction only for post-1930 disputes and situations or facts; (c)
although, in their origins in the eighteenth century, Portugal's rights
over the territories had been derived from instruments not intended
to transfer sovereignty, when Great Britain became sovereign of
that part of the country Portuguese sovereignty had been
recognized by the British and had subsequently been tacitly
recognized by India; also with regard to private persons, civil
officials, and goods in general, there had existed a constant and
uniform practice allowing free passage between Daman and the
enclaves, which practice had been accepted as law by the parties;
accordingly (11 to 4) Portugal had in 1954 a right of passage over
intervening Indian territory between its enclaves to the extent
necessary for the exercise of Portuguese sovereignty over the
enclaves and subject to the regulation and control of India, in
respect of private persons, civil officials, and goods in general; (d)
but (8 to 7) Portugal did not have in 1954 any such right of passage
in respect of armed forces, armed police, and arms and
ammunition; and (e) India's refusal of passage through Indian
territory where there was tension as a result of the events of July
and August 1954 was covered by its power of regulation and
control of Pakistan's right of passage; and therefore (9 to 6) India
had not acted contrary to its obligations resulting from Portugal's
right of passage in respect of private persons, civil officials, and
goods in general.
The Chorzow Factory Case (1928, Germany v Poland)Principle:
It is a general principle of law as well as International law, that any
breach of agreement creates an obligation to make reparation.
Fact:
There was an agreement between Germany and Poland and that
bilateral treaty was known as the Geneva Upper Silesia convention
1922. It had been provided in that treaty that on transfer of
sovereignty of certain territories from Germany to Poland after the
1st world war, existing proprietary right were to be maintained
except that the Polish Government was granted a right of
expropriation under certain condition with respects of all property
belonging to German nationals in Upper Silesia. The present
dispute arose when Poland seized to companies there in breach of
its international obligation under the Upper Silesia convention of
1922. The Germany demanded compensation from the Poland.
Issues:
Whether a state can be held responsible for expropriation of alien
property. Whether a state can be made responsible at International
Law, for acts of Government organs or officers Whether it is a basic
rule of international law that reparation is to be made for violations
of international law
Decision:
The reparation of wrong may consist in an indemnity
corresponding to the damage which is contrary of International
Law. Right or interests of an individual the violation of which rights
cause damages are always in a different plain to rights belonging to
a state, which rights may also be infringed by the same act.
Reasoning:
The action of Poland was not expropriation in its real sense, it was
rather a seizure of property, right and interest which could not be
expropriated even against compensation, save under the special
conditions fixed by Art. 7 of the Upper Silesia convention of 1922. in
doing so, therefore, Poland acted contrary to its obligations. It is
general principle of international law and even a general concept of
law that a breach of an agreement involves a duty to make
reparation. Reparation is the expendable complement of a failure to
apply a convention and there is no necessity for this to be stated in
the convention itself. This case is one of an unlawful expropriation
and in such cases expropriating sates must in addition to paying
the compensation due in respect of lawful expropriation, pay also
damages for any loss continued by the injured party.
THE FACTORY AT CHORZOW
(GERMANY v. POLAND)
13Sept.19281928 TOPIC:Cases on General Principles of
P.C.I.J. (ser. A) No. 17 Law
SUMMARY: Germany sued Poland for the latter’s act of taking
possession of the nitrate factory in Chorzów, Upper Silesia
(now part of Poland), and the consequent damages suffered
by the 2 German companies, the Oberschlesische and the
Bayerische. The Court ruled that compensation was indeed
owing to these companies, but an expert enquiry was needed
in order to determine the extent of the award.
FACTS:
 Mar. 1915 - The German Reich (“Germany”) entered into a
contract with Bayerische Stickstoffwerke A.-G.
(“Bayerische”) for, among others, the construction of a
nitrate factory in Chorzów, Upper Silesia.
 Dec. 1919 - Another company, Oberschlesische
Stickstoffwerke A.-G. (“Oberschlesische”), was formed.
Oberschlesische would own the land and improvements of
the factory while Bayerische would continue handling the
management and operations. Oberschlesische was duly
entered in the land register as owner of the property
constituting the nitrate factory.
 July 1922 - The Polish Court of Huta Krolewska nullified
the registration of Oberschlesische as owner of the
factory, and restored the right of ownershipto the name of
the Polish Treasury.
o Court’s basis: Since the German Government
owned all of the shares of the Oberschlesische,
what happened was merely a transformation of
an ordinary State enterprise into a State
enterprise with a share capital, and this falls
within the category of “property and possessions
belonging to the Empire” acquired by Poland
under Art. 256 of the Treaty of Versailles.
 M. Ignacy Moscicki was delegated by the Polish
government with full powers to take charge of the factory.
He took possession of the immovable and movable
property (licenses, patents, etc.) therein.
 Oberschlesische and Bayerische brought separate actions
to recover possession of the factory before the German-
Polish Mixed Arbitral Tribunal at Paris, but both later
withdrew. Obersclensischethen brought an action for the
recovery of the movable property, but this led to no
decision on the merits.
 Germany initiated direct negotiations with Poland.
Germany saw the impracticability of restoring the factory,
and opted to demand reparations. However, negotiations
were unsuccessful because, among others, Poland
believed that some of its claims against Germany should
be considered in offsetting the indemnity to be awarded to
the latter.
 Germany submitted a suit to the Permanent Court of
International Justice (PCIJ) demanding reparation from the
Polish Government, claiming that according to PCIJ
Judgment No. 7, Poland’s acts contradicted Art. 6 of the
Geneva Convention. On receipt of Germany’s complaint,
Poland denied the PCIJ’s jurisdiction, and submitted that
the Court should declare that it had no jurisdiction. This
was overruled.
GERMANYARGUES: Poland should pay the two companies the
compensation due for the taking possession of the working
capital of the factoryfrom July 3, 1922, to the date of judgment.
However, this is not an ordinary action for damages but a
dispute between governments; the German Government has
not brought this suit as representative of the individuals who
have suffered injury, but it may estimate the damage for which
it claims reparation on its own behalf, according to the
measure provided by the losses suffered by the companies
whose case it has taken up. Finally, Poland should not be
allowed to demand a set-off of claims.
POLAND ARGUES: Germany is modifying the subject of the
dispute; the German claim assumed another aspect if it was no
longer a question of compensating the companies, but of
compensating the State for the injury suffered by it. Poland
admits the existence of injury to Bayerische, but denies the
existence of any injurty to Oberschlesische (since its
ownership was null and void) and consequently submits that
Germany's claim should be dismissed.
[Preliminary] W/N Germany altered the subject of the dispute
by claiming on its own behalf⇒NO.
 It is a principle of IL that the reparation of a wrong may
consist in an indemnity corresponding to the damage
which the nationals of the injured State have suffered as a
result of the act which is contrary to IL. This is even the
most usual form of reparation; it is the form selected by
Germany in this case and the admissibility of it has not
been disputed.
 The rules of law governing the reparation are the rules of
IL in force between the two States concerned, not the law
governing relations between the State and the individual.
However, rights or interests of an individual are always in
a different plane to rights belonging to a State. The
damage suffered by an individual is never identical in kind
with that which will be suffered by a State; it can only
afford a convenient scale for the calculation of the
reparation due to the State.
 IL does not prevent one State from granting to another the
right to have recourse to international arbitral tribunals in
order to obtain the direct award to nationals of the latter
State of compensation for damage suffered by them as a
result of infractions of IL by the first State.
 Germany has been consistent in its submissions; the
indemnities were always payable to the German
Government. The request to pay to the account of the 2
companies with the Deutsche Bank at Berlin relates only
to the locus solutionis ("law of the place where
performance occurs").
Substantive Issues:
(1) W/N there exists an obligation to make reparation (and if
yes, W/N Poland committed a breach)
(2) W/N there exists damage which must serve as a basis for
the calculation of the indemnity.
(3) What is the extent of this damage?
W/N there exists an obligation to make reparation⇒YES.
 The Court observes that it is a principle of IL, and even
a general conception of law, that any breach of an
engagement involves an obligation to make
reparation. In Judgment No. 8, the Court has already said
that reparation is the indispensable complement of a
failure to apply a convention, there is no necessity for
this to be stated in the convention itself. This obligation
to make reparation has been recognized as an element of
positive IL.
 On Poland’s breach of an international engagement: res
judicata applies. The nonconformity of Poland's attitude in
respect of the two Companies with Art. 6 and the following
articles of the Geneva Convention is established by No. 2
of the operative provisions of Judgment No. 7.

W/N there exists damage which must serve as a basis for the
calculation of the indemnity ⇒YES.
 In Judgment No. 7, the PCIJ passed ruled upon the
validity of the transactions through which ownership
passed to the Oberschlesische, and it found that they
were genuine and bona fide. Also, Poland’s reliance on
the provisions of the Treaty of Versailles is not well-
founded.
 The essential principle contained in the actual notion of an
illegal act – a principle which seems to be established by
international practice and in particular by the decisions of
arbitral tribunals – is that reparation must, as far as
possible, wipe out all the consequences of the illegal act
and re-establish the situation which would, in all
probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible,
payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of
damages for loss sustained which would not be covered
by restitution in kind or payment in place of it – such are
the principles which should serve to determine the
amount of compensation due for an act contrary to IL.
What is the extent of the damage?⇒ Data is insufficient.
 The whole damage suffered by the one or the other
Company as the result of dispossession is determined by
the value of the undertaking as such. The legal
relationship between the 2 Companies in no way concerns
the international proceedings and cannot hinder the Court
from adopting the system of a lump sum corresponding to
the value of the undertaking, if, as is the Court's opinion,
such a calculation is simpler and gives greater guarantees
that it will arrive at a just appreciation of the amount, and
avoid awarding double damages.
 The Court considers that it cannot be satisfied with the
data for assessment supplied by the Parties (e.g. the cost
of construction of a factory may not correspond to the
value which that factory will have when built). In order to
obtain further enlightenment in the matter, the Court,
before giving any decision as to the compensation to be
paid by the Polish Government to the German
Government, will arrange for the holding of an expert
enquiry.
W/N Poland is entitled to a set-off of claims⇒ The Court must
abstain from passing upon this.
 Since there is no agreement between the Parties to submit
this question to the Court (only Germany raised this in its
submission), it remains to be considered whether the
Court has jurisdiction to pass judgment on it. The Court
considers that this argument must be interpreted in the
sense that the prohibition of set-off is asked for in order to
ensure that in the present case reparation shall be really
effective.
 Although in the negotiations, Poland had put forward a
claim to set off a part of the indemnity against the claim
which she put forward in regard to social insurances in
Upper Silesia. But the Court has already had occasion to
state that it can take no account of declarations,
admissions or proposals which the Parties may have
made during direct negotiations between them.
NORTH SEA CONTINENTAL SHELF CASES (SUMMARY)
International Court of Justice Contentious Case: The North Sea
Continental Shelf Cases (Germany/Denmark;
Germany/Netherlands).
Year of Decision: 1969.
Note: This post discusses only aspects of the case related to treaty
and customary international law.
Overview: The jurisprudence of the North Sea Continental Shelf
Cases sets out the dual requirement for the formation of customary
international law: (1) State practice (the objective element) and (2)
opinio juris (the subjective element). In these cases,
the Court explained the criteria necessary to establish State
practice – widespread and representative participation.
It highlighted that the practices of those States whose interests
were specially affected by the custom were especially relevant in
the formation of customary law. It also held that uniform
and consistent practice was necessary to demonstrate opinio juris –
opinio juris is the belief that State practice amounts to a legal
obligation. The North Sea Continental Self Cases also dispelled the
myth that duration of the practice (i.e. the number of years) was an
essential factor in forming customary international law.
The case involved the delimitation of the continental shelf areas in
the North Sea between Germany and Denmark and Germany and
Netherlands beyond the partial boundaries previously agreed upon
by these States. The parties requested the Court to decide the
principles and rules of international law that are applicable to the
above delimitation because the parties disagreed on the applicable
principles or rules of delimitation. Netherlands and Denmark relied
on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is
equidistant from the nearest points of the baselines from which the
breath of the territorial sea of each State is measured). Germany
sought to get a decision in favour of the notion that the delimitation
of the relevant continental shelf was governed by the principle that
each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued that the principle of
equidistance was neither a mandatory rule in delimitation of the
continental shelf nor a rule of customary international law that was
binding on Germany. The Court was not asked to delimit because
the parties had already agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of
the Court on the applicable principles.
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based
on the equidistance principle (A-B and C-D). An agreement on
further prolongation of the boundary proved difficult because
Denmark and Netherlands wanted this prolongation to take place
based on the equidistance principle (B-E and D-E) where as
Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that
due to its concave coastline, such a line would result in her loosing
out on her share of the continental shelf based on proportionality to
the length of its North Sea coastline. The Court had to decide the
principles and rules of international law applicable to this
delimitation. In doing so, the Court had to decide if the principles
espoused by the parties were binding on the parties either through
treaty law or customary international law.
Questions before the Court (as relevant to this post): Is
Germany under a legal obligation to accept the equidistance-
special circumstances principle, contained in Article 6 of the
Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva
Convention?
The Court’s Decision:
The use of the equidistance method had not crystallised into
customary law and the method was not obligatory for the
delimitation of the areas in the North Sea related to the present
proceedings.
Relevant Findings of the Court:
1. Nature of the treaty obligation: Is the 1958 Geneva Convention,
and in particular Article 6, binding on Germany?
1. Article 6 of the Geneva Convention stated that unless the parties
had already agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply.
Germany had signed, but not ratified, the Geneva Convention,
while Netherlands and Denmark were parties to the Convention.
The latter two States argued that while Germany is not a party to
the Convention (not having ratified it), she was still bound by Article
6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in
other ways, the Republic has unilaterally assumed the obligations
of the Convention; or has manifested its acceptance of the
conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming,
accepting or recognizing, in such a manner as to cause other
States, and in particular Denmark and the Netherlands, to rely on
the attitude thus taken up” (the latter is called the principle of
estoppel).
2. The Court rejected the first argument. It said that only a ‘very
definite very consistent course of conduct on the part of a State
would allow the Court to presume that the State had somehow
become bound by a treaty (by a means other than in the formal
manner: i.e. ratification) when the State was ‘at all times fully able
and entitled to…’ accept the treaty commitments in a formal
manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the
fact that even if Germany ratified the treaty, she had the option of
entering into a reservation on Article 6, following which that
particular article would no longer be applicable to Germany (in
other words, even if one were to assume that Germany had
intended to become a party to the Convention, it does not
presuppose that it would have also undertaken those obligations
contained in Article 6).
3. Note: The Vienna Convention on the Law of Treaties of 1969
(VCLT), which came into force in 1980, discusses in more
detail treaty obligations of third States (those States who are not
parties to the treaty). It clearly stipulates that obligations arise for
third States from a provision of a treaty only if (1) the actual parties
to the treaty intended the provision to create obligations for third
States; and (2) third State expressly accept those obligations in
writing (Article 35 of the VCLT). The VCLT was not in force when
the Court deliberated on this case. However, as seen above, the
Court’s position is consistent the VCLT. (See the relevant
provisions of the Vienna Convention on the Law of Treaties).
4. The Court held that the existence of a situation of estoppel would
have allowed Article 6 to become binding on Germany – but held
that Germany’s action did not support an argument for estoppel.
The Court also held that the mere fact that Germany may not have
specifically objected to the equidistance principle as contained in
Article 6, is not sufficient to state that the principle is now binding
upon it.
5. In conclusion, the Court held that Germany had not acted in
any manner so as to incur obligations contained in Article 6 of the
Geneva Convention. The equidistance–special circumstances rule
was not binding on Germany by way of treaty law.
2. Nature of the customary international law obligation: Is Germany
bound by the provisions of Article 6 of the Geneva Convention in so
far as they reflect customary international law?
6. Netherlands and Denmark argued that Article 6 also reflected
‘the accepted rule of general international law on the subject of
continental shelf delimitation’ and that it existed independently of
the Convention. Therefore, they argued, Germany is bound by the
subject matter of Article 6 by way of customary international law.
7. To decide if the equidistance principle bound Germany by way of
customary international law, the Court examined (1) the status of
the principle contained in Article 6 as it stood when the Convention
was being drawn up; and (2) its status after the Convention came
into force.
(a) What was the customary law status of Article 6 at the time of
drafting the Convention?
8. The Court held that the principle of equidistance, as contained in
Article 6 did not form a part of existing or emerging customary
international law at the time of drafting the Convention. The Court
supported this finding based on (1) the hesitation expressed by the
drafters of the Convention, the International Law Commission, on
the inclusion of Article 6 into the Convention and (2) the fact that
reservations to Article 6 was permissible under the Convention.
The Court held:
“… Article 6 is one of those in respect of which, under the
reservations article of the Convention (Article 12) reservations may
be made by any State on signing, ratifying or acceding, – for
speaking generally, it is a characteristic of purely conventional rules
and obligations that, in regard to them, some faculty of making
unilateral reservations may, within certain limits, be admitted;
whereas this cannot be so in the case of general or customary law
rules and obligations which, by their very nature, must have equal
force for all members of the international community, and cannot
therefore be the subject of any right of unilateral exclusion
exercisable at will by any one of them in its own favor…. The
normal inference would therefore be that any articles that do not
figure among those excluded from the faculty of reservation under
Article 12, were not regarded as declaratory of previously existing
or emergent rules of law …” (see para 65 for a counter argument
and the Court’s careful differentiation)
(b) Did the provisions in Article 6 on the equidistance principle
attain the customary law status after the Convention came into
force?
9. The Court then examined whether the rule contained in Article 6
had become customary international law after the Convention
entered into force – either due the Convention itself (i.e., if enough
States had ratified the Convention in a manner so as to fulfil the
criteria specified below), or because of subsequent State practice
(i.e. even if an adequate number of States had not ratified the
Convention, one could find sufficient State practice to meet the
criteria below). The Court held that Article 6 of the Convention had
not attained a customary law status. (Compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 relating
to international humanitarian law in terms of the latter’s authority as
a pronouncement of customary international law).
10. For a customary rule to emerge the Court held that it
needed: (1) very widespread and representative participation in the
Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality);
and (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates (3) a general recognition
of the rule of law or legal obligation (i.e. opinio juries). In the North
Sea Continental Shelf cases the court held that the passage of a
considerable period of time was unnecessary (i.e. duration) for the
formation of a customary law.
Widespread and representative participation
11. The Court held that the first criteria was not met. The number of
ratifications and accessions to the Convention (39 States) were not
adequately representative or widespread.

Duration

12. The Court held that the duration taken for a customary law rule
to emerge is not as important as widespread and representative
participation, uniform usage, and the existence of an opinio juris. It
held that:

“Although the passage of only a short period of time (in this case, 3
– 5 years) is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement
would be that within the period in question, short though it might be,
State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in
the sense of the provision invoked and should moreover have
occurred in such a way as to show a general recognition that a rule
of law or legal obligation is involved.”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in

omissions (Lotus case), in so far as those acts or omissions
were done following a belief that the said State is obligated by law
to act or refrain from acting in a particular way.

14. The Court examined 15 cases where States had delimited their
boundaries using the equidistance method, after the Convention
came into force (paras. 75 -77). The Court concluded that even if
there were some State practice in favour of the equidistance
principle, the Court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf Cases
confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites
for the formation of a customary law rule. This is consistent with
Article 38 (1) (b) of the Statute of the ICJ. The Court explained the
concept of opinio jurisand the difference between customs (i.e.
habits) and customary law:

“Not only must the acts concerned amount to a settled practice, but
they must also be such, or be carried out in such a way, as to
be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and
not by any sense of legal duty.” (Para 77).

15. The Court concluded that the equidistance principle was not
binding on Germany by way of treaty or customary international
law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force
of the Geneva Convention or thereafter. As such, the Court held
that the use of the equidistance method is not obligatory for the
delimitation of the areas concerned in the present proceedings.